Osaka,OV Mall go to court

October 8, 2013

ST. CLAIRSVILLE Representatives of the Ohio Valley Mall Company and Osaka Japanese Restaurant made their arguments before Common Pleas Court Judge John M. Solovan II during a preliminary injunction hearing Monday.

Solovan made no decision as a result of the proceedings, but said a decision would be forthcoming as soon as possible. He noted that all parties have until next Tuesday to file their briefs. He concluded by suggesting the businesses reach a resolution.

The dispute concerns a claim from Zhao Xu Wang and Linda Feng Lin, owners of Osaka, that the mall violated a restrictive covenant on their lease by allowing the Panda Restaurant, which advertises as serving Chinese food, to set up shop in one of the outer buildings on Mall Ring Road.

Article Photos

T-L Photo/ ROBERT A. DEFRANKRepresentatives from the Ohio Valley Mall and the Osaka Japanese Restaurant testified during a preliminary injunction hearing. Pictured is Anthony Cafaro Jr., co-president of Cafaro Co.

The court saw a day of testimony and cross-examination as the prior owners, Tseng Ti Peng and Amy Peng, were called to relate their perspective on the circumstances of the lease in 2009. Amy Peng was concerned that their fledgling business would not survive if other such restaurants were to open and serve a limited customer base. They had included a handwritten addition to the lease, specifying among other details, that no other Chinese or Japanese restaurants would be permitted in or around the mall.

Linda Feng Lin also testified concerning their understanding of the lease.

Anthony Cafaro Jr., co-president of Cafaro Co., took the stand and testified that the addition to the lease was too broad and a portion of the handwritten addition was crossed out, keeping other such restaurants from opening in the mall building, but allowing them in the exterior structures, one of which the Panda Restaurant intends to occupy. Furthermore, he said it was understood that the restrictive covenant applied only to sit-down, service restaurants with hibachi tables.

In addition, the mall's attorney, Michael Wright, also claimed Osaka initially defaulted on the lease when it was forced to delay opening the restaurant due to remodeling needs. Cafaro added that the mall overlooked the rent Osaka would have owed them during that time.

He also gave the opinion that the Panda restaurant would pose no financial threat to Osaka, since the new restaurant would be primarily a carryout establishment catering to motorists while Osaka gained its customers mainly from foot traffic.

Wright also argued that the lease was also violated and the restrictive covenant terminated when the restaurant was incorporated in order to obtain a liquor license.

Solovan asked Cafaro why Osaka was not notified if the restrictive covenant was terminated. Cafaro said it was not a policy of the industry.

Attorneys continued to raise questions concerning the parties' understanding of the lease at the time it was signed and at what point the clauses of the lease were still held valid.